Employment Benefits During Additional Maternity Leave - Changes planned to align entitlements during Ordinary and Additional leave

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13 March 2008

In February 2007, the Equal Opportunities Commission (EOC) sought a judicial review in the High Court of the Government's implementation, in the Sex Discrimination Act 1975, of the 2002 changes to the European Directive on "equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions". Six issues were raised by the EOC and, in the judgement handed down on 12 March 2007, the High Court ruled that the 2005 changes did not clearly reflect the amended Directive in the areas at issue and should be amended by the Government.

Among the issues raised by the EOC were two points related to the entitlement of women to contractual pay and benefits during ordinary maternity leave (the first 26 weeks of absence) and additional maternity leave (the second 26 weeks of absence). The entitlements relevant to the issues are:

• During ordinary maternity leave, a woman is entitled to the benefit of all of the terms and conditions of employment that would have applied if she had not been absent, other than her remuneration which is defined specifically as "sums payable to an employee by way of wages or salary".
  
  
• During additional maternity leave, a woman is entitled to the benefit of any terms and conditions of her employment relating to
  
  
  • notice of the termination of the employment contract by her employer,
    
    
  • compensation in the event of redundancy, or
    
    
  • disciplinary or grievance procedures.

The EOC raised two points about these entitlements because the European Directive does not allow a woman to suffer discrimination in employment because she is on maternity leave, other than in certain permitted situations. The High Court agreed with the EOC's argument that these provisions are discriminatory and, as a result, the Government is obliged to change the relevant legislation, including the Maternity and Parental Leave etc Regulations 1999. The changes will include

• clarification of the meaning of "remuneration", and
  
  
• the removal of the distinction between entitlement to non-pay benefits during ordinary maternity leave and during additional maternity leave.

The necessary changes to the Sex Discrimination Act 1975 will be made by Regulations that are intended to come into effect on 6 April 2008. However, in order to provide time for employers to prepare for the changes, those relating to terms and conditions during maternity leave will apply to employees whose expected week of childbirth begins on or after 5 October 2008. The changes will involved amendments to the Maternity and Parental Leave etc Regulations 1999.

...UK Payroll News - Latest

Further information:
Outcome of Judicial Review on Employment Equality (Sex Discrimination) Regulations 2005
Change of implementation date for the changes being made to the law on contractual terms of employment during Additional Maternity Leave

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